Improving the Electoral Law for Bosnia-Herzegovina
Proposals from the Balkan Action Council, 22 December 1999

Summary

The Dayton peace agreement ended the war in Bosnia, at the price of the country's de facto partition. The agreement imposed a political and electoral structure that has enabled hardliners to consolidate their hold on Bosnia. Reform of the electoral law can overcome some of the structural flaws of Dayton that frustrate the development of democracy.

The draft election law tabled by High Representative Wolfgang Petritsch (OHR) and OSCE Mission Head Bob Barry makes some strides in promoting a more democratic Bosnia. The preferential voting system combined with open lists gives voters a more direct choice in selecting officeholders, as opposed to the closed party-selected lists. Some members of parliament are assigned to constituencies, which will enable voters to hold individuals as well as parties accountable. The law promotes more transparency in the electoral system. Campaign expenditure limits help constrain the in-built advantage of established parties and their patronage networks. Finally, the decision by the Provisional Election Commission to disallow candidates from standing for election if they are occupying property belonging to refugees or displaced persons will help promote respect for property laws - crucial in refugee return - as well as respect for rule of law in general.

Of the ruling political parties and coalitions, Sloga in the Bosnian Serb Republic is the most supportive of the draft law. The ultranationalist Serbian Democratic Party (SDS) is also generally supportive of the law. The Bosniak Party of Democratic Action (SDA) has raised objections to the law, mainly in regard to refugee voting rights, and has recently stated it will not support it in parliament. The Croatian Democratic Union (HDZ) is strongly resisting it, claiming it is `electoral engineering' on behalf of `majority peoples,' as well on grounds of centralization and complication.

Several opposition political parties have raised objections to the draft electoral law. The multiethnic Social Democratic Party strongly opposes the open list voting system, which they fear will enable voters to pick only party candidates of their own ethnicity, thus defeating the purpose of the party's existence. They, along with the Liberals, also oppose the designation of constituencies and favor continuation of unadulterated proportional representation. All the major opposition parties, including the New Croatian Initiative (NHI), oppose the draft law on the grounds that it maintains ethnic segregation and places minorities in entities on an unequal footing with the `constituent' ethnicity, including restricting voter's rights. A number of smaller opposition parties raise similar and other objections to the draft law.

Given the opposition of key Bosnian political parties, the High Representative will almost certainly have to impose an electoral law early in 2000. The law imposed can include changes to the draft law already tabled, which does not take full advantage of the opportunity posed by a positively changing regional situation, nor rise to the challenge posed to Bosnia-Herzegovina (BiH) by the international community's intention to reduce its commitments there. The election law should reflect the Peace Implementation Council's priorities for Bosnia. The recommendations that follow can still be included in the electoral law that will be imposed by the High Representative.

In view of the considerable distance that Bosnia has yet to cover before democracy takes root throughout the country, and the continuing threat of partition (which some members of the international community would appear almost to welcome), it would be irresponsible for OSCE to end its stewardship of the electoral process after the October 2000 elections, with the intention that the Bosnians must take ownership of their electoral process.

We are also dubious about the implications of holding further elections in Bosnia - under any electoral law - while indicted Bosnian Serb war criminal Radovan Karadzic; remains at large in the country. The continued reluctance of SFOR to apprehend Karadzic encourages hardliners in all communities to believe that resistance to the Dayton peace agreement pays dividends, and waiting out the international community's departure is a feasible alternative to democracy and reconciliation.

The Ratification Process

The draft law was publicly released on October 21. Public debate will take place as the state parliament considers the law in the House of Representatives and House of Peoples. Entity parliaments must also pass implementing legislation for the electoral law. The municipal elections scheduled for 8 April 2000 will not be carried out formally under the provisions of the electoral law, but many of its provisions have nonetheless been written into the provisions of the OSCE regulations that will govern the conduct of the municipal elections. To enable the new law to be applied in the October elections for the state-level House of Representatives, entity and cantonal assemblies, the presidency and vice presidency of the Republika Srpska, the legislation must be implemented by late February. The High Representative is expected to impose the law if it has not received legislative sanction by February.

Recommendations

The following specific changes will improve the draft law:

`Constituent peoples,' cited throughout the draft law, should be congruent in both entities, as reflected in their constitutions. A category of `others' - Jews and those who do not regard themselves as Bosniaks, Croats or Serbs - should be included as well.

At present, each entity has constituent peoples (Federation of BiH - Croats and Bosniaks; Republika Srpska - Serbs). This means one's rights vary depending on where one resides. This is fundamentally undemocratic. It also deters refugees and displaced persons from returning to locations where they are a minority (there are still over one million refugees and displaced persons who have not returned to their homes). If all peoples of Bosnia were constituent throughout the state, then all would have equal rights to vote.

Voters should be able to register to vote only in the municipality in which they resided for the 1991 census unless they have legally moved in accordance with rules governing property claims and OHR directives.

Existing regulations on voter eligibility allow voters to register where they have moved since 1991. Though the new regulation would require backtracking from current voter eligibility, only relying on 1991 residence - with the exclusion of those who have moved legally and are not occupying someone else's home or place of business - can disallow `ethnic cleansing' from continuing to have a decisive effect on Bosnia's political process and development. Having the linkage between voter eligibility and property rights might jumpstart the legal transfer of property and encourage greater respect for rule of law in Bosnia.

Suspend elections for the Bosnian House of Peoples, and disregard its deliberations.

The House of Peoples has been obstructionist throughout the past four years, and serves as an exclusive club of ethnically based parties. The body does not contain voices of `non-constituent' peoples, thereby effectively disenfranchising Serbs in the Federation and Bosniaks and Croats in the Bosnian Serb Republic, and `others' in both entities. The continued existence of the body is inherently antithetical to the democratic development of Bosnia. The High Representative and OSCE should not sanction further elections to this body, nor should its views be taken into account. Bosnia should, in effect, become unicameral. (Draft electoral law, chapter 10.)

The Electoral Commission should be an eleven-seat body, with no single party or coalition permitted to hold more than one seat. Two seats should be apportioned to political party members of each `constituent people' (including `others,' see
recommendation number one above) for a total of eight seats, and three seats reserved for OHR-appointed non-Bosnians. The High Representative should appoint members of the electoral commissions at all levels. In addition, the Appeals Council, which is the ultimate arbiter over Election Commission decisions, should also be appointed by OHR from among qualified Bosnian jurists and internationals.

The draft electoral law stipulates that the Electoral Commission should contain seven members, one from each constituent ethnicity (including `other') and three international members, appointed by the High Representative. This would provide ethnically based nationalist parties with considerable influence over the rule-making body for the election process and a springboard to domination of the Commission when OSCE does finally divest itself of its electoral supervision responsibilities. By broadening the Commission, even complete collusion among the Bosnian Serb nationalists, Croatian Democratic Union and Party of Democratic Action could not automatically stymie the system. (Draft electoral law, chapter 2, article 10, and chapter 20.)

Open lists should become more open, through allowing voters to split their tickets and vote for more than one party at a time. At present, a voter must choose candidates from only one party, coalition, or list of independent candidates.

The open list system stipulated in the draft electoral law allows voters to be more discerning than a closed list system, but still does not allow them to split tickets. Considering the residual fear most Bosnians have of the other `constituent' peoples, this system gives the ethnically based ruling parties a built-in advantage, which has been used in every Bosnian election since the war. With a split ticket option, voters can still vote for nationalists, but not as an all-or-nothing proposition. Split tickets will allow gradual moderation of the citizenry and promote inter-ethnic confidence building, unlike a single ticket system - open or closed - which caters to division in a situation such as today's Bosnia. (Draft electoral law, chapter 5, articles 14 and 15.)

Each member of the Bosnian Presidency should obtain his/her mandate from the entire population of the state. Therefore, each Bosnian voter should cast three ballots - one for each seat.

The presidency should represent the state. If each voter could choose one candidate from each constituent people recognized in the Dayton accords, then each citizen would be represented by the presidency as a whole, and each candidate would have to vie for votes from outside his/her own ethnicity. A presidency thus elected would be more likely to function effectively than has been the case hitherto. (Draft electoral law, chapter 8.)

All candidates elected to municipal office should take up their elected positions on schedule. Those political parties, coalitions, and lists of independent candidates whose members have acted to obstruct implementation of municipal election results should be disallowed from participating in any Bosnian elections at any level. To enforce election results, OHR and SFOR should establish a joint enforcement task force to ensure that those elected can be seated and the democratic process is respected.

Municipal councilors have frequently been prevented from taking up their elected offices, especially in the case of `absentee' municipal councils. The High Representative has no enforcement mechanism of his own, which limits his ability to use the powers of dismissal and imposition given to him at the December 1997 Bonn meeting of the Peace Implementation Council. The ability to enforce decisions would bolster voter confidence in the process and deter violations and obstructions.

Participation of absentee voters - in neighboring states as well as further abroad - needs to be vigorously pursued, as they comprise a major proportion of the potential Bosnian electorate. Bosnian embassies and consulates need to be specifically tasked with informing and registering voters. The OSCE and the future Bosnian Election Commission must establish reasonable procedures and deadlines to ensure that this is possible.

In current practice, as well as in the new draft law, absentee voters, especially those in the U.S. and Germany, are at a distinct disadvantage in the electoral process. While logistics make informing this segment of the electorate living outside Bosnia daunting, it is essential for such individuals to have the franchise as citizens. For example, in recent elections, only a fraction of the Bosnian citizenry in the United States was able to vote. In addition, registration deadlines are unrealistic given the nature of the task. For example, the registration deadline for the April municipal elections expired on November 30, 1999.

There should be no restrictions on the arrest powers of SFOR in conjunction with any elections in Bosnia.

The draft election law bars arrests of non-publicly indicted war criminals by any actor - local or SFOR - for 60 days prior to elections. Any immunity for any reason sets a bad precedent. SFOR should not be subject to any restrictions in its arrest powers. Especially during elections, indictees should not be allowed to feel safe anywhere in Bosnia. In fact, some Bosnian politicians, including Bosnian Serb Prime Minister Milorad Dodik, have called for SFOR's mandate to be altered so as to require, rather than merely authorize, SFOR to arrest indicted war criminals, be they publicly indicted or under sealed indictment. (Draft electoral law chapter 1, article 11.)

Those individuals who have been disqualified from previous elections or removed from elected or appointed office by the High Representative or other competent authorities should be ineligible to run for any office in Bosnia. They should be barred from appointed public office as well. Those parties refusing to expel such persons should be disallowed from participating in elections until they have responded to the satisfaction of the Bosnian Electoral Commission. There have been numerous instances of individuals who, once forced from one job by OHR, have moved to another public or political party post, often with a higher rank than the previous position. This allows such individuals to maintain their power and influence. By linking the party's fate to its disposition of such individuals, the election law could help foster greater accountability and confidence in government. (Draft electoral law, chapter 1, articles 6 and 7.)

Individuals should be allowed to serve in one, and only one, elected office at a time. This change should apply to administrative posts as well.